Even as Jury Deliberates, Judge Says He'll Toss Palin Libel Suit Against New York Times

U.S. Judge Jed S. Rakoff, a Bill Clinton appointee, told lawyers in the courtroom in New York Monday he would dismiss Sarah Palin’s defamation suit against the New York Times for lack of evidence, even as the jury deliberated over the verdict.

The jury will not learn of the dismissal until after it has deliberated, creating the potential between a conflict between the verdict and the judge’s decision to dismiss the case — or to issue what courts refer to as a “directed verdict” to end the trial.

Palin sued the Times over a 2017 editorial in which it said that she had inspired the 2011 mass shooting in Tucson, Arizona. Judge Rakoff initially dismissed the case, but it was revived by a federal appeals court. After the presentation of arguments in initial motions, Rakoff decided that Palin had enough evidence to allow the case to go to trial — a rarity in defamation suits by public figures against the media, since the standard of proving “actual malice” is usually too high for plaintiffs to clear.

Moreover, Rakoff sent the case to the jury after closing arguments last week. But on Monday, as NPR’s David Folkenflik reported, he had second thoughts, and said Palin failed to meet the “actual malice” standard because of the Times‘s correction, and then-editorial page editor James Bennet’s contrition:

What a dramatic moment.

In an elaborate tour of his thinking, Judge Rakoff laid out for the world why he didn’t want to pre-empt the jury – but says Palin failed to make actual malice case agst NYT or Bennet

notes Bennet asked writer of original draft to give it another look

— David Folkenflik (@davidfolkenflik) February 14, 2022

Rakoff also says “he wasn’t happy” to reach this conclusion given what he sees as seriousness of NYT’s lapses but that he has to apply the law

— David Folkenflik (@davidfolkenflik) February 14, 2022

The jury in Palin v NYT & James Bennet are the only ones who will not know that Judge Rakoff intends to dismiss the case.

Jury has just asked to continue deliberations until 5pm, which he grants.

— David Folkenflik (@davidfolkenflik) February 14, 2022

Worth remembering; Judge Rakoff initially dismissed Palin’s defamation suit against the New York Times & Bennet but was pointedly ordered to revisit his decision by an appellate court on procedural grounds

— David Folkenflik (@davidfolkenflik) February 14, 2022

As Judge Rakoff noted in remarks preceding announcement – he was not ruling on whether she had convinced him she had won the case but whether she had produced enough evidence to *make* her case, meeting tough actual malice standard about defamation of public figure

— David Folkenflik (@davidfolkenflik) February 14, 2022

Defense lawyers routinely ask judges to issue directed verdicts, and they may do so at any time during the trial. But to do so while the jury is still deliberating is very rare.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. His recent book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.